The Minister of Justice and Correctional Services, Ronald Lamola, has been making the right noises lately, including making calls that judicial officers need to be held to the highest standards of scrutiny.
“Their conduct must at all times be beyond reproach, and be conduct befitting their office,” said the minister when he recently announced the provisional suspension of magistrate Desmond Nair over two counts of misconduct for his alleged links to corruption-plagued African Global Operations, formerly known as Bosasa. The minister further said:
“Given the seriousness of the allegations, as well as the importance of the image of our judicial officers, our courts and the rule of law, I have decided to provisionally suspend Mr Nair with immediate effect, pending the outcome of the investigation.”
The pickle for Nair came in the form of testimony at the Zondo Commission in 2019 by Richard le Roux, that Global Technology Systems formerly known as Sondolo IT and a subsidiary of African Global Operations, installed as an undue favour to magistrate Nair CCTV cameras, an alarm system and an electric fence at his house worth R200,000.
In reference to Oscar van Heerden’s 26 February observation in Daily Maverick that there are cowards among us, the minister seems to have heard this indictment about lack of action against corruptible judicial offers, and corrupt activities in the judiciary. Corruption is so endemic in almost all sectors of South African society that it is only through the bravery of influential people and those with decision-making powers such as Lamola that we will begin to end the story of “corruption, stealing taxpayers’ money, plundering and pillaging at every turn” as the “lived experience of most of South Africa,” as Van Heerden puts it.
The legal fraternity would rather split hairs to sustain an argument that allegations of corruption in the judiciary and the legal profession, in general, are just red herrings. We are comfortable in the belief that our judges (here I use the word “judge” broadly to refer to any person exercising judicial power, however, designated – such as justices, magistrates, heads of Chapter 9 institutions, commissioners and heads of special judicial tribunals) and court staff (the personal staff of the judge including law clerks) are incorruptible. There are judges who are concerned about the fact that corruption has made its way into our courts. Corruption is spreading across the judiciary. The numbers do not lie.
A survey report in 2019 looked at the integrity of the judiciary in South Africa. It says nearly a third of citizens believe judges and magistrates are corrupt or involved in corruption with 32% in 2018 being of this view compared with 15% in 2002. It gets worse. The number of citizens who are of the view that judges and magistrates make decisions independently or not is near-evenly matched — 24% and 23% are of the view that magistrates and judges, respectively, rarely make independent decisions.
While 23% and 21% are of the view that magistrates and judges respectively never make their decisions independently. It gets worse. Trust in branches of the government did not score better either. In 2018, a mere 51% of citizens said they trusted the courts, a 19% drop from 70% in 2016. Interestingly, in terms of section 165(4) of the Constitution of 1996:
“Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.” The AfroBarometer polling indicated otherwise. Further, trust in the legislature nosedived with only 32% of citizens showing trust in that body compared with 56% in 2011.
Inasmuch as some of the poor scores were linked to issues around former president Jacob Zuma, the image of a corrupt judiciary in general remains. For ordinary citizens, little has been done to remedy the undesirable situation.
Some may say that the AfroBarometer results were just perception. But, anybody in the legal profession – judge, magistrate, a legal practitioner and legal academic – will know that perception matters. So does the image of the judiciary and our rule of law. The damage is done no matter how hard we try to dismiss claims and perceptions that our judiciary is corrupt.
For example, Johannesburg lawyer Raymond Edward Chalom has persistently made allegations against the judiciary and the Judicial Services Commission (JSC) of lack of independence, corruption and political bias. According to Chalom, Public Protector Busisiwe Mkhwebane has been at the receiving end of political bias in the judiciary. His 2019 views on corruption were preceded by his earlier writing to the UN Security Council Division complaining about “corruption in the South African judiciary and Judicial Service Commission (JSC)”.
This is not the first time the credibility of our lower courts has come in for sharp attention. There is the 22 September 2018 amaBhungane story, Corruption in the courtroom: A sordid tale of sex, gambling, poachers and payoffs detailing allegations by four women that led to the Magistrate’s Commission having to consider misconduct proceedings against the KwaZulu-Natal regional court president for allegedly taking bribes in poaching cases in northern Kwazulu-Natal.
This case also involved an alleged intricate web of corruption and undue favours in return for ascent to the bench and obstruction of justice by magistrates and attorneys in northern KwaZulu-Natal. Acts of misconduct in the magistracy read like a saucy novel or a mafia movie script.
Information on these corrupt activities and general misconduct of our judicial officers were reported by the Parliamentary Monitoring Group (PMG) on 28 March 2018. Among the misconduct dealt with in the PMG was of a complaint alleging rape lodged with the minister of justice against the chief magistrate of Bloemfontein — and the SAPS refusing to take the complaint; and a magistrate in Randburg charged with corruption and subsequently convicted for allegedly demanding and receiving “the sum of R150,000 in exchange for positively influencing the outcome of an appeal for extradition in a particular matter”.
As long as we downplay the corruptibility or allegations thereof of members of the South African judicial professions and accountability bodies — judges, magistrates, prosecutors, court officials, heads of Chapter 9 institutions and other tribunals, the JSC and the Magistrates’ Commission, law faculties and law clinics — initiatives like the Zondo commission will remain futile.
I deliberately mention the Zondo commission because much is expected of it to help root out corruption and that the commission’s complementary institutions such as the National Prosecuting Authority (NPA) are not seen to be turning a blind eye to acts of corruption. Also, it is important to always make mention of legal practitioners because attorneys and advocates are among those at high risk of undue political influence and susceptibility to corruption because of their role as intermediaries in the judicial system, and the cloak of client-lawyer privilege, which is abused by some lawyers to hide acts of corruption.
Prosecutors also tend to find their hands in the corruption cookie jar, acting unconscionably to the detriment of desperate and indigent members of society. There have been reports of some prosecutors externally influenced through bribes and other favours-in-kind to botch investigations, to tamper with evidence and delay the finalisation of cases on behalf of accused persons.
Corruption in the South African judicial and legal professions has been reported in many studies including those reported by Transparency International’s Global Corruption Barometer. The Zondo commission itself has heard claims and allegations of corrupt activities (including dereliction of duty for political purposes) by top NPA officials, by former Deputy National Director of Public Prosecutions Nomgcobo Jiba and former Special Director of Public Prosecutions Lawrence Mrwebi.
It is important that I mention law faculties because as I previously wrote, some of the faultlines in the judiciary and legal profession lie in our legal training. Our law faculties offer legal practice modules in their LLB curriculum, but not many profoundly address corruption as part of discussions on professional conduct and ethics, or address anti-corruption behaviour as one of the key learning outcomes.
Justice Kennedy of the US Supreme Court, commenting on the integrity of the court, stated that we must know and acknowledge that “if we are in an era in which there is a loss of confidence in the judicial system, and even worse, a misunderstanding of the judicial system, then we must take steps to correct it.”
In my view, the corrective steps in South Africa must align with some of the recommendations made by the 2009 UN Economic Commission for Africa. The following six recommendations are particularly relevant in our context:
- “On the principle of judicial independence, judges and magistrates should be proactive in their conduct and judgments and not subordinate themselves to the executive or legislative arms of Government”;
- “The penalty for abuse-of-office offences by a judge or magistrate should not be limited to dismissal from office. The offender should be prosecuted in a court of law, and the appropriate penalty should be meted out to emphasise the gravity of the offence and serve as deterrence to others”;
- “The chief justices of each country should ensure that no one is promoted unless she or he has attended ethics training and a refresher course on the code” — (South Africa’s Chief Justice Mogoeng Mogoeng has shown leadership in creating a judiciary that is “dead against corruption and capture”. The Chief Justice’s stand against corruption must be replicated across the country, because, as he said, it is a privilege to be a judge and to benefit your family even from the grave. “As one privileged to be Chief Justice of this great country I am here to reiterate what I have said many times before, that virtually all measures necessary to insulate judges from corruptibility and secure our fierce independence have been put in place and are constitutionally entrenched, all the way into our retirement. Our spouses and partners would also be well looked after past our passing on to another life,” the Chief Justice said in a press briefing.);
- “Reported cases of corrupt practices must be dealt with objectively, transparently and seriously, in order to send the necessary deterrence signals to would-be-offenders. This process will enhance accountability and restore citizens’ confidence in the judiciary. The balance must be exercised to ensure that judges and magistrates are protected from frivolous or unfair attacks by unhappy litigants who use the complaints avenue as an alternative to the appellate process or simply an outlet for revenge” (The balancing act is important to avoid what Chief Justice Mogoeng Mogoeng regarded as Hitler’s propaganda approach of peddling baseless lies against the judiciary, hoping for the lies to become the truth. At the time the Chief Justice was addressing the infamous fake CR17 List alleging corruptibility of judges. As reportedly said by the Chief Justice, only a “sworn enemy of the constitutional democracy” would make gratuitous allegations of corruption against judges);
- “In corruption cases, the judicial process and outcome should be open for full public information through media reporting and/or publicly accessible ICT interfaces”; and
- “Bar associations, law enforcement agencies and other civil society organisations should be empowered to address issues of integrity and ethics in the dispensation of justice. Synergy should be created between all stakeholders to support anti-corruption initiatives.”
The issue of Nair and other judicial officers (and legal practitioners) reminds me of the address by Kenyan Chief Justice JE Gicheru, who at the 2005 UN’s Fourth Meeting of the Judicial Integrity Group stated that the perversity of corruption in the Kenyan judiciary has led to ordinary people catapulting the saying “Why pay a lawyer when you can buy a judge” to a whole new level and the majority of judges in Kenya had become “the best judges that money can buy”. [See UNODC Report, 2005, at p.6 para 21].
An interesting non-fiction legal thriller, The Price of Justice: A True Story of Greed and Corruption was written in 2014 by Laurence Leamer recounting the 14-year struggle of two lawyers to bring the most powerful coal baron in American history, Don Blankenship, to justice and how the wealthy Blankenship captured the judiciary to evade being brought to book.
Graham Brooks’ book Criminal Justice and Corruption: State Power, Privatization and Legitimacy highlighted that corruption is the problem of the criminal justice system in many countries – democratic, undemocratic, despotic, communist – and that this has led to questions regarding the legitimacy of criminal justice systems.
The book that captivated me from page one to the last is Crooked Brooklyn: Taking Down Corrupt Judges, Dirty Politicians, Killers and Body Snatchers by Michael Vecchione and Jerry Schmetterer because it is the hard-hitting and up-close and personal story of the public prosecutor dedicated to fighting corrupt mobsters, and public officials — including those in the judiciary — and hitting them where it hurts — their freedom and ill-gotten wealth. I am sure our prosecutors would like to read it if they have not done so already. Judges and politicians should be the last to appropriate on behalf of South Africa the label Gangsters’ Paradise. DM